Re Baby A [1999] NSWSC 787

New South Wales Supreme Court CITATION : Re Baby A [1999] NSWSC 787 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3145/99 HEARING DATE(S) : 20/07/99 JUDGMENT DATE : 26 July 1999

Director General of the Department of Community Services (P) PARTIES : Baby A (D1) JA (D2) AG (D3) JUDGMENT OF : Young J

COUNSEL : P Singleton (Solicitor) (P) G Moore (D2 & 3) SOLICITORS : I V Knight (P) Ross A Clarke & Associates (D2 & 3) CATCHWORDS : Equity [325]- Injunctions- Statement by defendants that they do not intend to do act- Consequences grave if act done- Injunction granted. Cowley v Byas (1877) 5 Ch D 944 Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 Glasgow Corporation v Muir [1943] AC 448 CASES CITED : Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1936] AC 108 R v Transport Secretary; Ex parte Factortame Ltd (No 2) [1991] 1 AC 603 Wellesley v Beaufort (1827) 2 Russ 1; 38 ER 236 Wellesley v Wellesley (1828) 2 Bligh NS 124; 4 ER 1078 Re X [1975] Fam 47 DECISION : Injunction granted

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG, J

MONDAY 26 JULY 1999

3145/99 - RE BABY A

JUDGMENT

1 HIS HONOUR: The first defendant, baby A, was born on 20 July 1999. Her mother is the second defendant and her father the third defendant. The birth was actually after the proceedings were commenced. However, to avoid any doubt as to the applicability of parens patriae jurisdiction no orders were made in the proceedings until after the first defendant's birth. 2 The second defendant was born in Peru. She is now 30 years of age and has resided in Australia since November 1995. The third and second defendant married in March 1996. 3 The second defendant became HIV positive accidently while working in a hospital in Argentina. 4 The plaintiff became concerned about the first defendant before she was born. Medical evidence shows that the chances of the baby of an HIV positive mother being herself HIV positive is greatly increased if she is born vaginally and does not take anti HIV medication or is breast-fed. 5 After extensive discussion between the plaintiff's officers and the second and third defendants the latter eventually agreed that the baby have a caesarean birth and be given medication. Although the second and third defendants tell the court that the second defendant does not intend to breast-feed the first defendant, they declined to consent to an injunction. 6 Mr Moore who appeared for the second and third defendants put to the court that their word was sufficient and they do not want the sword of Damocles over their heads. 7 Mr Singleton, who appeared for the plaintiff, says an injunction must be granted in this case. He says the risk to the first defendant is so great that the ultimate protection should be given to her. 8 At the end of the hearing on 20 July I made orders up to today so that I could consider the matters of principle that arise. When I reserved I was particularly concerned by the passage in Kerr on Injunctions 6th ed (Sweet and Maxwell, London, 1927) p 411 that: